Unwin v. John Hancock Mut. Life Ins. Co. of Boston, Mass.

• Decision Date: 08 December 1931
• Docket Number: No. 21748.,21748.
• Citation: 43 S.W.2d 899
• Parties: UNWIN v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.
• Court: Missouri Court of Appeals

43 S.W.2d 899

UNWIN v. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, MASS.

No. 21748.

St. Louis Court of Appeals. Missouri.

December 8, 1931.

Rehearing Denied December 22, 1931.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

"Not to be officially published."

Action by Mayme Unwin against the John Hancock Mutual Life Insurance Company of Boston, Mass. From a judgment for plaintiff, defendant appeals.

Affirmed.

Leahy, Saunders & Walther and Lyon Anderson, all of St. Louis, for appellant.

John F. Clancy and James J. O'Donohoe, both of St. Louis, for respondent.

NIPPER, J.

This is a suit on a life insurance policy. The action is based upon the legal presumption of death, which is created by an absence of seven years. There was a verdict and judgment for plaintiff for the amount of the policy, together with statutory penalties and attorney's fees on account of vexatious refusal to pay. Defendant appeals.

The suit was brought by the former wife to recover for the death of her husband. The insured, Ira Claude Moore, was born in Tresson, Iowa, but resided in St. Louis since he was twelve years of age. Plaintiff was born in Cincinnati, Ohio, and at the time of the trial had resided in St. Louis for thirty-four years. Plaintiff and insured were married October 1, 1914, in St. Louis, and continued to live there until insured's disappearance. There were two children born of the marriage. In 1918 insured started working for a concern as a salesman for the Missionary Magazine. He worked for them until about February, 1919. He was arrested and indicted for embezzlement of the funds of this concern, pleaded guilty, and sentenced to two years in the penitentiary by the circuit court of St. Charles county. Thereafter he was admitted to parole upon condition that he make report to the court on the first day of each term for a period of two years from May 28, 1919. At the October term, 1919, he made his report to the court and made payment on the costs. In December, 1919, plaintiff, insured, and their two children took a trip, which included Detroit, Hamilton, Ontario, Buffalo, Erie, Pa., and Cleveland. After they reached Cleveland, about February, 1920, insured was employed by an electrical concern in the city of Cleveland. Plaintiff took the two children and came to St. Louis. Insured did not return with them, because he was engaged in selling these electrical appliances in and around Cleveland. While there he sent plaintiff three or four remittances of $50 each. With the last remittance he inclosed a letter telling his wife, the plaintiff, that he was sending her $50 more, and would continue to do so on the 5th and 20th of each month, and advising her that he was doing very nicely, and that he always prayed for his dear family every night, but that he could not see them for a while yet. This was dated May 19, 1920. Plaintiff did not hear from him any more. She took up the matter of his disappearance with the police departments of St. Louis and Cleveland, without avail. A Mr. Quest, a representative of the insurance company, was at plaintiff's home about four times. She gave him pictures of insured, his handwriting, and all information she had, for the purpose of enabling him to locate the insured. Plaintiff wrote to insured's grandparents and his cousin, who resided in Los Angeles. Insured's parents were dead. Plaintiff did not know the name or address of the concern in Cleveland for which he was working, or any one connected with it. She never contemplated moving to Cleveland, and stated that her husband considered this position in Cleveland as a temporary one, and was to come home.

Plaintiff introduced evidence of friends and neighbors, who had known them during their married life, all to the effect that he was a happy and contented man with his family, and that there was no trouble of any kind between him and his wife, and that he always appeared to be happy and contented in his home. He was sober, and stayed at home when he was in the city.

At the February term, 1920, of the circuit court of St. Charles county, insured did not make any report, and his parole was revoked on February 11, 1920. When they left on their trip to Canada, plaintiff and insured spent about two weeks in Detroit, visiting a brother; then about two weeks in Hamilton, Ontario. They stayed a few weeks in Buffalo, N. Y., and one night in Erie, Pa., going from there to Cleveland, Ohio.

As grounds for reversal, defendant urges: (1) That the plaintiff failed to make a case for the jury; (2) that plaintiff's instruction No. 1 lays down an incorrect statement of the law; (3) that defendant's instruction C should have been given; (4) that no case for the application of the statutory penalties was made; and (5) that instruction No. 2 was incorrect in form.

Instruction No. 1, given at the request of the plaintiff, is as follows: "The Court instructs the jury that if you find and believe from the evidence that Ira Claude Moore has been absent and unheard of for seven years or more next prior to April 1, 1928, then the law would presume that he is dead, and you will be warranted in so finding and returning a verdict for plaintiff, unless you further find and believe from the evidence that said Ira Claude Moore is alive or has been alive some time during seven years prior to April 1, 1928, or since that time."

Instruction No. 2, given at the request of plaintiff, is as follows:

"The Court instructs the jury that if you find for plaintiff you should allow her the sum of five hundred and thirty dollars ($530.00), with interest thereon at the rate of 6 per cent. per annum from April 1, 1928, to this date.

"And the Court further instructs you that if you find and believe from the evidence that prior to the filing of this action, the defendant refused to pay the amount due under said policy; and if you further find and believe from all the facts and circumstances shown by the evidence that defendant's refusal to pay the amount due under said policy was vexatious—that is, willful, in bad faith and without any probable cause or reasonable excuse—then you may allow her a further sum, not exceeding 10 per cent. of the amount due under said policy, as damages and a reasonable attorney's fee for such services, if any, as you may find and believe from the evidence has been rendered to plaintiff by her attorneys in the preparation and prosecution of this action, not exceeding the sum of five hundred dollars.

"And if you find for plaintiff and you also decide to allow her either damages or attorney's fee, then you should specify each of said items (if you find in plaintiff's favor as to either) separately, in your verdict the amounts allowed, if any, and return your verdict for the aggregate amount of your findings."

Defendant argues that plaintiff made no case for the jury, because the statute does not authorize the presumption of death where such person was a resident of another state at the time he disappeared, because there would be no sufficient reason to expect him within the seven years or any particular time to return to the state of which he had ceased to be a resident.

In support of this proposition, defendant cites and relies upon the case of Heath v. Salisbury Home Telephone Co. (Mo. Sup.) 33...